04 October 2016

Terror and Intention

In R v Mohamed [2016] VSC 58 Melbourne man Amin Mohamed - a New Zealand citizen - has been sentenced under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(a) to 5 years and 6 months' imprisonment (non-parole period of 3 years and 6 months) for making preparations to travel to a foreign country to engage in hostile acts.

The judgment states

The three charges of which you were found guilty by the jury were constituted by three discrete acts:
On 6 September 2013, being a New Zealand citizen, you applied for a New Zealand passport from Melbourne;
On 19 September 2013, from Melbourne, you booked plane tickets for Istanbul and Turkey from where you intended to enter the foreign state of Syria;
On 19 September 2013, while in Melbourne you obtained from Hamdi Alqudsi the contact details of ‘Omar’, who was to act as a guide ensuring safe passage for you and others from Turkey to Syria.

It continues

In straightforward terms, the clear purpose of the provisions under which you were charged was to ensure that Australia discharged its international obligation to make criminal the activities of someone like you who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of your conduct. Like contemporary terrorism offences, the CFIR Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention. ...

On the prosecution’s case, the acts committed by you were criminal in nature because they each represented acts in preparation for entry into Syria with the intention of you engaging in hostile activities in that country. Objectively, this is very serious offending as the circumstances demonstrate.

At your trial, most of the evidence was not in contention. You had made arrangements, with the assistance and advice from Hamdi Alqudsi to travel from Australia to Istanbul in Turkey and then travel by air from Hatay, a town and province of Turkey, to Syria with the assistance of a man named Omar who was a contact given to you by Alqudsi. Though you were organising your own travel with the knowledge of Alqudsi, you were also organising and coordinating others who, like you, were travelling to Syria. The intention was to meet up with your fellow travellers in Istanbul prior to your proposed entry into Syria where you would be guided to particular locations.

During the making of these arrangements, you reported back to Alqudsi on how many other individuals were travelling, not necessarily with you, and the arrangements that had been made so that that information could be relayed by Alqudsi overseas.

On 20 September 2013, you left Melbourne and travelled to Sydney in readiness for a flight to Brisbane the following day, from where you were intending to board an international flight to begin the international aspect of your travel to Syria. For some time you had been the subject of surveillance by law enforcement authorities. Although unknown to you, your passport was cancelled during these events and the result was that you were prevented from traveling from Brisbane to Singapore by members of the Australian Federal Police.

The only issue raised during the course of your trial was whether the prosecution could prove, beyond reasonable doubt, that upon reaching Syria you intended to engage in hostile activities within the legal meaning of that phrase.

Lasry J explains

Lawfully monitored telephone conversations in which you were involved at the time reveal a number of conversations with Alqudsi, from whom you were receiving advice and instruction and to whom you were reporting. There were also conversations between you and other men who would be your fellow travellers. During these conversations, you were referred to by yourself and others as Abu Bilal. Also, during these conversations, certain code words were used in relation to what was being discussed for the purpose of avoiding detection. During the period you used four telephones – two of those were registered in other names and addresses and one of those phones was that of a work colleague.

On 28 August 2013, you gave notice to your employer that you would resign on 18 September 2013. The reason you gave for that, concerning your mother and a terminal illness, was false.

The intercepted telephone conversations that you were involved in began on 5 September 2013. There were four phone calls on that day, with you using more than one phone to participate. You were told by Alqudsi to use a safe phone number. In the conversations that followed you were told that, in effect, there was to be a big operation, which was obviously in Syria and would involve martyrdom, and that there was an urgency about you and others from Australia getting over there [Syria]. You said you could be ready. There were extensive discussions about the arrangements. In a further conversation, there was more discussion about money and the idea that there was no turning back.

You said in your evidence before the jury that this conversation with Alqudsi just flowed and was moving along. You said you did not pause and think. You claimed that the evidence referred only to the plan to go to Syria and was not a reference to fighting. You said that the only reason you used coded language was because you did not want to be stopped from going to Syria but it was not your intention to engage in hostile activities. Clearly the jury rejected that, and did so beyond reasonable doubt.

As to the quote ‘front line’ referred to in that conversation, you claimed you thought that meant prayer not battle. In a later conversation, Alqudsi again referred to the battlefield and martyrdom and you said you knew what was being said to you but did not agree that the conversations were being directed at you. Also, in that first conversation there was discussion about ‘red flags’ and about money being taken and also whether you ‘had the boys ready’.

On 6 September 2013, you rang the New Zealand Passport office and made arrangements to apply for a new New Zealand passport. You told the passport officer to whom you spoke that your passport had been lost. There were then conversations with other participants at that time about the arrangements for travel. These continued on the following day. Also on 7 September 2013 you purchased a sim card for a mobile phone in the false name of Chris Wright. Your application for the New Zealand passport constitutes charge one on the indictment.

On 9 September 2013, an application from you for a new passport was received by the New Zealand Passport office with the appropriate fee. As the evidence and Crown summary indicate, there were further phone calls with Alqudsi. You reported to him on the travel arrangements. There were discussions about altering the appearance of the travellers by shaving their beards and doing other things to avoid suspicion. You were warned not to refer to Hatay airport if questioned. The need for secrecy was emphasised. Later that day, the arrangements were altered with travel to be delayed because the passport of a man named Abu Dujanah had been confiscated by the authorities. Your original plan was to depart on 15 September 2013 but, in view of those developments and the risk of being observed, that departure was delayed.

The arrangements continued on 16 September 2013 and they began with a conversation with Alqudsi in which you told him that all was in readiness.

There were several other phone calls on 16 September 2013 between you and your fellow travellers during which respective travel arrangements were discussed.

On 19 September 2013, you booked a flight from Singapore to Istanbul via Doha. That conduct is the basis of charge two. On the following day, you booked flights from Sydney to Brisbane and from there to Singapore.

On the same day, you obtained the contact details for ‘Omar’ from Alqudsi. Omar was the person who would assist you to travel from Hatay airport into Syria. That is the basis of charge three. The details were provided by Alqudsi, who told you not to come and visit him in Sydney as to do so would endanger your trip. It was on this day, 19 September 2013, that your new passport was cancelled.

On 20 September 2013, you boarded a flight to Sydney from Melbourne Airport. On the following day, 21 September 2013, you travelled from Sydney to Brisbane and, at Brisbane Airport, members of the Australian Customs Service reacted to an alert that was attached to your record and you were stopped from checking in to the international flight. You were prevented from leaving the country because of the cancellation of your passport. Though prevented from travelling on that day, you were not arrested.

On 23 and 24 September 2013, you communicated with the New Zealand Passport office about the cancellation of your passport and gave detailed explanations, which you admitted were lies, about why you were travelling and where you were going. You had said that you were going to Denmark to meet your fiancé and that she would buy you a ticket to get from Turkey to Denmark.

From then on until your subsequent arrest you were in Melbourne and Sydney where you resumed working and seemed to have no further contact with Alqudsi.

On Tuesday 3 December 2013, you were arrested by police in Sydney. I will return to the circumstances of what followed, including your time in custody, shortly.

In discussing intention to engage in hostile activitythe judgment states

the main issue in your trial was whether or not the Crown could prove beyond reasonable doubt that your intention in going into Syria was to engage in hostile activity. In your sworn evidence at your trial, you denied that was your intention and said:

My intention was still the same when I had decided to go to Syria. That was the first make the migration for the sake of God, and with the migration also from our teachings is that the person who makes this migration if it is successful that all his sins behind him are wiped away, so for me it was migration redemption, go to Syria, be with my cousin. The only thing that had changed was the fact that now I had some few other guys come with me and the intention remained the same of going there, and at that time I never called it humanitarian work, but helping the people in the way that my cousin was at that time.

Clearly the jury rejected that evidence, and you must be sentenced on the basis that your intention in travelling to Syria was to engage in hostile activity. A question arises as to what that means for the purpose of sentencing you in this case.

In directing the jury during the course of your trial, and pursuant to a ruling I delivered before the trial started, I said:

The law says that engaging in a hostile activity in a foreign state consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by a force or violence of the government of the foreign state or of a part of a foreign state;
(aa) engaging in armed hostilities in the foreign states;
(b) causing by force or violence the public in the foreign state to be in fear of suffering, death or personal injury;
(c) causing the death of, or bodily injury to, a person who:
(i) is the head of the foreign state; or
(ii) holds, or performs any of the duties of, a public office of the foreign state or of a part of a foreign state; or
(d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign state or of a part of a foreign state.
Now in this case the particular form of hostile activity that the Crown rely on is engaging in armed hostilities in the foreign state being Syria.
So, if you are satisfied that the accused intended to go to Syria to fight; to go to the ‘front line’ and/or to ‘be a martyr’ in all likelihood you would be satisfied that he intended to engage in armed hostilities. An intent to engage in armed hostilities does not require proof that the intention was to be involved in regular armed forces of a nation state. Nor does it require proof of the intention to pursue any particular political objective.

On the basis of the jury’s verdict, I propose to sentence you as a person who intended to go to Syria to fight in the conflict, which was going on in that country at that time, and to go to what you regarded as the ‘front line’ and, if necessary, to be a ‘martyr’, which may have involved your death in some form of armed conflict. The evidence does not support a conclusion which is any more specific than that. Whilst you were obviously willingly involved you did not declare any more specific intention. I do not think you would have lasted long. You do not seem to have any previous experience that would have equipped you for what you apparently wanted to do. That may be a clear indicator of how misguided your state of mind was at the time.

I accept your counsel’s point that the circumstances in Syria in 2013 were different from those that prevail at present, though there is no evidence about the detail of that before me. In my opinion, it is enough for sentencing purposes to act on the basis that Syria is a foreign state; there was and is a conflict going on in that country which you were intending to participate in. For these purposes, I make no further judgements about the nature of that conflict, either then or now. ...

Having been stopped from travelling in Brisbane on 21 September 2013 by virtue of your New Zealand passport having been cancelled, you were not charged with the offences until 3 December 2013. You apparently returned to Melbourne and stayed with your mother before returning to Sydney to obtain employment with your former employer.

On being charged you were admitted to bail without opposition from the prosecution, and that effectively lasted until 7 January 2014 when you were detained under the Migration Act 1958 and held at Villawood Detention Centre until you were transferred to Maribyrnong Detention Centre on 11 July 2014, where you remained until your trial, which began in October 2015 and where you continued to remain until today.

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